Permanent Labor Certification Application is the initial step in obtaining your green card through employment. The employer must file a PERM application with the Department of Labor (ETA Form 9089).
The PERM process requires that the company make an attempt to recruit American workers for the position and prove that they are able to pay the prevailing wage determined by DOL.
The PERM process imposes a series of requirements on both the employer and the prospective employee (beneficiary). The employer must be able to demonstrate that the position in question is a bona fide job available to qualified U.S. workers and that it meets prevailing wage requirements.
The employer must also be able to show that hiring the alien worker will not adversely affect wages and working conditions of similarly skilled and qualified U.S. workers in the same field. This is usually easier said than done, especially in a weak economy.
Finally, the employer must be able to prove that it has both the financial capability and the willingness to pay the offered wage to a foreign national for the full-time job at issue. Kuck Baxter helps employers comply with these requirements by preparing PWDs, conducting labor market tests and filing Form ETA 9089. In addition, we will help employers meet any audit requests by the Department of Labor.
Prevailing Wage Determination
Obtaining a prevailing wage determination is an early step in the PERM process. It is required by law to ensure that your employer pays you a fair wage and does not adversely affect American workers in the same occupational field.
In a prevailing wage request, your employer must provide the DOL with information about your position, its duties, and your worksite location. The DOL will then issue you a “prevailing wage determination,” which sets the minimum salary you must be paid.
In order to qualify for a prevailing wage, your job must be covered by a collective bargaining agreement between your employer and a labor union that represents employees in your occupation. The PWD must be valid at the time you begin advertising your position and when you file your labor certification application. If it is not, your employer may be subject to increased scrutiny by the Department of Labor during the PERM process. This can lead to a delay in the processing of your case.
Labor Market Test
The Department of Labor (DOL) created the Permanent Labor Certification Program, also known as PERM, to protect U.S. workers and the job market by ensuring that a foreign national is not filling a position that could have been filled by qualified U.S. workers. Employers must document the recruitment process and submit certain attestations about the offered position and the foreign national’s qualifications.
Before an employer can file a Permanent Labor Certification Application, they must test the labor market for “able, willing, and qualified” U.S. workers in a similar role. This is done through a series of recruiting steps, including placing a job order with a state workforce agency and running a minimum of two general circulation newspaper advertisements. Additionally, the sponsoring employer must submit financial documentation that demonstrates it is financially capable of paying the offered wage. Once the application is approved by the DOL, the employer may then file an immigrant visa petition with USCIS on behalf of the foreign national employee.
Once the employer is confident that it has done everything necessary to meet the requirements of PERM, including giving advance notice to the SWA and testing the labor market, it may file an application with ETA Form 9089. The employer must provide a clear description of the job duties, education, training and experience required for the position. In addition, it must demonstrate that the prevailing wage exceeds the minimum wage.
Employers must also complete a recruitment process, which includes placing job orders and advertising in local newspapers for 30 to 180 days and reviewing resumes. The employer must keep documentation of all of the steps in this process, which includes copies of all advertising and review notes.
Once ETA Form 9089 is filed, it must be signed immediately by the employer, foreign worker and preparer (if applicable). All of these signatures must be original. Then, it must be sent to the appropriate USCIS processing center.